Democrat City Councilor Issac Benton and Republican Brook Bassan are proposing making changes and updating the city’s Pedestrian Safety Ordinance permitting anyone from certain kinds of activities on city owned medians. The ultimate goal is to restrict panhandling on city owned medians. If this sounds at all familiar, its because it is. It was in 2017 that Albuquerque City Councilor Trudy Jones sponsored the original “Pedestrian Safety Ordinance” that was enacted unanimously by the city council. The original bill banned pedestrians from having exchanges with drivers.
The American Civil Liberties Union (ACLU) filed a federal civil rights lawsuit challenging the city ordinance. U.S. District Court Judge Robert Brack in Albuquerque ruled in 2019 that the ordinance violated free speech protections because it was “not narrowly tailored to meet the City’s interest in reducing pedestrian-vehicle conflicts.” The city appealed the ruling and in 2021 the U.S. 10th Circuit Court of Appeals in 2021 upheld Judge Brack’s ruling.
The U.S. 10th Circuit Court of Appeals in its ruling wrote:
“[The city was] unable to establish that the ordinance does not burden substantially more speech than necessary to further its interest in pedestrian safety … [and] has almost completely failed to even consider alternative measures that restrict or burden the speech at issue less severely than does the ordinance.”
The federal appeals court noted the city’s argument on accident reports failed to support the need for several of the ordinance’s provisions, ruling the city’s arguments “actually belied any assertion that pedestrian presence near highway ramps or on medians, or pedestrian involvement in physical exchanges with vehicles occupants, gave rise to significant safety concerns.”
ORIGINAL LANGUAGE DECLARED UNCONSTITUTIONAL
The original language of the “Pedestrian Safety Ordinance” that was declared unconstitutional by the federal court is as follows:
(D) It is unlawful for any pedestrian to engage in any physical interaction or exchange with the driver or occupants of any vehicle within a travel lane unless reasonably required because of an emergency situation. For purposes of this section, a “physical interaction or exchange” is conduct by which a pedestrian intentionally makes physical contact with a vehicle in a travel lane or with any of its occupants, either directly or with an object.
(E) It is unlawful for any occupant of a motor vehicle within any travel lane or intersection to engage in any physical interaction or exchange with a pedestrian unless reasonably required because of an emergency situation. For purposes of this section, a PHYSICAL INTERACTION OR EXCHANGE is conduct by which an occupant of a motor vehicle in a travel lane intentionally makes physical contact with a pedestrian, either directly or with an object.
The complete, unedited ordinance can be found in the POSTSCRIPT following to this blog article.
The new Benton/Bassan bill deletes the egregious, unconstitutional language and the following language is substituted:
“It is unlawful for any person to stand in any travel lane of a street, highway, or controlled access roadway or in any travel lane of the exit of entrance ramps thereto, or to otherwise enter a travel lane of a street, highway, or controlled access roadway or in any travel lane of the exit of entrance ramps thereto, except for the purpose of legally crossing … It is unlawful for any person to access, use, occupy, congregate or assemble on any median that is located on any roadway with a posted speed limit of 30 miles per hour or greater and that does not possess a flat area of at least four feet (4’) in diameter”.
Note that the new ordinance specifically bars individuals from standing in or entering street and highway travel lanes unless they are “legally crossing.” It also prohibits using or occupying medians on 30 mph or faster roads where there is not a flat surface at least 4 feet wide.
Under the new ordinance, if pedestrians are on a median that doesn’t meet the bill’s requirements, a $100 citation could be issued. APD and the Albuquerque Community Safety Department (ACS) will be authorized to give warnings, or are a person can be criminally charged with a misdemeanor and fined a $100.
The new ordinance delineates an extensive amount of statistics and cites New Mexico as being among the worst in the nation for pedestrian fatalities, with 9 deaths per 100,000 from 2009-2019. It also cited the 2020 death of Rachanda Myers, a mother of three who was hit and killed by a car sitting on a narrow median on Pan American Freeway.
The updated ordinance removes the unconstitutional provisions of the original ordinance, including the part banning exchanges between drivers and pedestrians, and loosens up where pedestrians can be on sidewalks. Under the new version of the ordinance, if people are on a sidewalk or median, it has to be at least four feet wide, on a street where the speed limit is under 30 miles per hour, and flat, having no greater than 8% grade.
Ordinance co-sponsor Republican City Councilor Brook Bassan had this to say:
“I absolutely believe that people should be able to express their free speech, but I also think that people driving have a right to be safe when they’re driving to or from different locations and not have to worry if they’re going to hit somebody and kill them. And if people are a little bit more unbalanced, they need to be able to be safe too. … The priority is to make sure people are safer both to make sure people are safer standing on medians or sidewalks or if they’re driving. … We’re working to have some enforcement that’s fair and that allows for the opportunity for some change to happen.”
Democrat co-sponsor City Councilor Benton for his part said he believes the new version can withstand a potential legal challenge because it does not specifically target people who are homeless and it would also apply to people fundraising or otherwise using medians. Benton said this:
“If they’re doing it on a 2- or 3-foot-wide median in heavy traffic, that’s just not a safe situation.”
MAYOR TIM KELLER REQUESTED THE LEGISLATION
City Councilors Benton and Bassan are sponsoring the legislation on behalf of the Keller administration. It was in September that Mayor Tim Keller requested that the ordinance be enacted. In a September memo to both, Keller wrote:
“Due to the … large number of pedestrian/vehicle-involved crashes, Albuquerque seeks to address general pedestrian safety concerns, and to prevent further unnecessary deaths and injuries resulting from pedestrian occupation of medians by amending the Traffic Code to disallow occupancy by pedestrians in medians” .
Mayor Tim Keller’s office issued the following statement after new ordinance was introduced:
“[The new ordinance represents] common-sense regulations and is responsive to specific Court of Appeals’ concerns. … Medians are constructed to manage traffic flow, and narrow medians on high-speed roads are simply not safe places for anyone to stand. We have to protect pedestrians and drivers with common-sense regulations. The City carefully evaluated the Tenth Circuit opinion and sought to address the specific concerns identified by the Court. Most significantly, the City limited the scope of the new ordinance. The ordinance only prohibits people from standing on dangerous medians that are four feet or narrower. This change is designed to protect both pedestrians and the traveling public, while also allowing for protected speech.”
The ACLU for its part said it was reviewing the new ordinance and issued the following statement:
“We are still analyzing the bill and the City’s actions for consistency with the Court’s order and how the city council votes. We are committed to making sure that people in our city do not suffer criminal legal consequences for taking part in life-sustaining activities that are protected by basic constitutional rights. “
The links to quoted news source material are here:
https://www.kob.com/new-mexico/albuquerque-city-councilors-propose-median-safety-ordinance/
https://www.abqjournal.com/2538089/city-trying-again-to-outlaw-activity-on-medians.html
CAMPING ON SIDEWALKS HAS BEEN ILLEGAL FOR 50 YEARS
One of the most common complaints are the homeless camping where they want on city sidewalks. In July when Mayor Tim Keller announced the closure of Coronado Park, which had become an a de facto city sanctioned encampment, he also announced a policy change when it comes to encampments on sidewalks. Keller had this to say:
“The city has changed its policies with respect to certain areas, we are going to have a much quicker response time with respect to encampments. Those areas are sidewalks. … It’s an ADA issue. It is too dangerous to camp on a sidewalk for people trying to use the sidewalk.”
The City has adopted a Criminal Code”, 12-1-1 to 12-1- 99. There are two specific ordinances that apply and that make it illegal to camp on sidewalks that were enacted 50 years ago. Those ordinances are:
12-2-3 CRIMINAL TRESPASS.
Criminal trespass consists of unlawfully entering or remaining upon the lands or property of another knowing that any consent to enter or remain has been denied or withdrawn by the person or persons lawfully in possession of the premises or after the request or demand to leave the premises by the authorized representative of the person or persons lawfully in possession of the premises.
(’74 Code, § 12-1-2-3) (Ord. 96-1973; Am. Ord. 78-1978) Penalty, see § 12-1-99
12-2-7 OBSTRUCTING MOVEMENT.
Obstructing movement consists of:
(A) Hindering or molesting persons passing along any street, sidewalk, crosswalk, or other public way; or
(B) … .
Violation of either of the ordinances is a misdemeanor punishable by a fine of not more than $500, or by imprisonment for not more than 90 days, or by both such fine and imprisonment.
(’74 Code, § 12-1-2-7) (Ord. 96-1973; Am. Ord. 43-1988; Am. Ord. 55-1990; Am. Ord. 1-2004; Am. Ord. 21-2004) Penalty, see § 12-1-99
https://codelibrary.amlegal.com/codes/albuquerque/latest/albuquerque_nm/0-0-0-101138#JD_12-2-3
The Albuquerque Police Department issued a statement on the enforcement in a statement they said in part:
“Most encounters police have with people who may be criminal trespassing result in arrests on existing warrants. So, the criminal trespass may not be captured.”
The link to the quoted new source is here:
https://www.koat.com/article/target-7-albuquerque-sidewalk-camping-citations/41537630
COMMENTARY AND ANALYSIS
What was downright laughable if not embarrassing was when Mayor Tim Keller said “It’s an ADA issue. It is too dangerous to camp on a sidewalk for people trying to use the sidewalk.” This comment is what you call a person trying to say something intelligent. Ostensibly, Keller is ignorant of the fact that both the city’s “criminal trespass” law and “obstructing movement” law were enacted 50 years ago in 1973 and close to 20 years before the Americans with Disabilities Act (ADA) was signed into law on July 26, 1990. The laws have nothing to do with the with disabilities and everything to do with public safety and making sure that public rights of way are used for their intended purpose.
The biggest problem with the original ordinance sponsored by Republican City Councilor Trudy Jones is that it was obviously directed at the homeless or panhandlers and also at drivers stopping to pass items such as food, money or anything a driver wanted to give as a handout to help make a beggar’s or a homeless person’s life a little less miserable. It came across as downright cruel and lacking any compassion interfering with people simply wanting to help with a handout.
In 2017, the city council was repeatedly warned about the language of the original ordinance by the ACLU and the City Council simply ignored what it was being told and that the original ordinance was unconstitutional. What was truly amazing is the poor advice the City Council was likely given in 2017 by the City Attorney’s Office and the fact that the City Attorney office appealed the original ruling.
From review of the new language and with the deletions of the unconstitutional language, the new version of the ordinance has a much better chance of being upheld as constitutional or going unchallenged in federal court. What is very promising is that the ACLU is also analyzing the new ordinance, and if it concurs, the city council should proceed with enactment of the new ordinance.
The homeless have reached crisis proportions with them becoming far more visible and aggressive by illegally camping in parks, on streets, in alleyways and in city open space whenever they want. When it comes to the “homeless crimes” of loitering, panhandling, illegal camping and criminal trespassing, Mayor Keller implemented a “no arrest” policy where arrests are the last resort and citations are to be issued. APD is allowed to make arrests only when circumstances endangering public safety warrant an arrest. This policy is ill-advised.
Being homeless is not a crime. The city has a moral obligation to help the homeless, mentally ill and drug addicted and is doing so with millions spent each year. With that said, homeless squatters who have no interest in city shelters, beds, motel vouchers and who want to live on the streets and camp in city parks, in alleys and trespass as they choose give the city no choice but to make it inconvenient for them to “squat” and force them to move on or be arrested by the Albuquerque Police Department.
The “new and improved” Pedestrian Safety ordinance if enacted by the city council coupled with the two existing ordinances prohibiting camping on sidewalls has the potential of making a real difference. But that will only be the case if APD is cut lose to do its job of enforcement.
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POSTSCRIPT
Following is the original and unedited “Pedestrian Safety Ordinance” sponsored by Republican City Councilor Trudy Jones and enacted in 2017:
- 8-2-7-2 OCCUPYING ROADWAYS, CERTAIN MEDIANS AND ROADSIDE AREAS PROHIBITED; CERTAIN PEDESTRIAN INTERACTIONS WITH VEHICLES PROHIBITED.
(A) It is unlawful for any person to stand in any travel lane of a street, highway, or controlled access roadway or in any travel lane of the exit or entrance ramps thereto;
(B) It is unlawful for any person to access, use, occupy, congregate or assemble within six feet of a travel lane of an entrance or exit ramp to Interstate 25, Interstate 40, or to Paseo del Norte at Coors Boulevard NW, Second Street NW, Jefferson Street NW, or Interstate 25, except on a grade separated sidewalk or designated pedestrian way, unless reasonably necessary because of an emergency situation where such area provides the only opportunity for refuge from vehicle traffic or other safety hazard;
(C) It is unlawful for any person to access, use, occupy, congregate, or assemble within any median not suitable for pedestrian use, unless reasonably necessary during an otherwise lawful street crossing at an intersection or designated pedestrian crossing, or because of an emergency situation where the median provides the only opportunity for refuge from vehicle traffic or other safety hazard. For purposes of this section, a MEDIAN NOT SUITABLE FOR PEDESTRIAN USE is:
(1) Any portion of a median that is less than six feet in width, and located within a roadway with a posted speed limit of 30 miles per hour or faster or located within 25 feet of an intersection with such a roadway; or
(2) Is the landscaped area of the median as defined by this Traffic Code; or
(3) Is otherwise identified by signage as not suitable for pedestrian use by the City Traffic Engineer based on identifiable safety standards, including but not limited to an unsuitable gradient or other objectively unsuitable features.
(D) It is unlawful for any pedestrian to engage in any physical interaction or exchange with the driver or occupants of any vehicle within a travel lane unless reasonably required because of an emergency situation. For purposes of this section, a “physical interaction or exchange” is conduct by which a pedestrian intentionally makes physical contact with a vehicle in a travel lane or with any of its occupants, either directly or with an object.
(E) It is unlawful for any occupant of a motor vehicle within any travel lane or intersection to engage in any physical interaction or exchange with a pedestrian unless reasonably required because of an emergency situation. For purposes of this section, a PHYSICAL INTERACTION OR EXCHANGE is conduct by which an occupant of a motor vehicle in a travel lane intentionally makes physical contact with a pedestrian, either directly or with an object.
(F) Nothing herein shall be construed as preventing maintenance or construction activities within medians or roadside areas by public agencies or agents thereof, entering or exiting a bus or other form of public transit at authorized pick up and drop off locations, or as preventing physical interactions or exchanges between pedestrians and occupants of vehicles where the vehicle is lawfully stopped or pulled over outside of a travel lane, or parked at a location where on-street parking is permitted.
(’74 Code, § 9-5-14.2) (Ord. 65-1974; Am. Ord. 2017-028; Am. Ord. 2019-017)
Click to access O-2019-017.pdf